Vidya Wati & Ors. vs Virender Kumar & Ors
2012 Latest Caselaw 5391 Del

$~8

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Decided on: 10th September, 2012
+      MAC.APP. 168/2009

       VIDYA WATI & ORS.                           ..... Appellants
                    Through            Mr. Peeush Sharma, Advocate

                        versus


       VIRENDER KUMAR & ORS                  .... Respondents
                   Through  Mr. K.L. Nandwani, Advocate for
                            the Respondent No.3 Insurance
                            Company.


       CORAM:
       HON'BLE MR. JUSTICE G.P.MITTAL

                                 JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for enhancement of compensation of `4,92,400/-

awarded by the Motor Accident Claims Tribunal(the Claims Tribunal) for the death of Shiv Prasad who died in a motor vehicle accident which occurred on 23.09.2004.

2. In the absence of any Appeal by the driver, owner and the Insurance Company, the finding on negligence has attained finality.

3. The following contentions are raised on behalf of the Appellant:

(i) The deceased's income was established to be `5,500/-

per month; the Claims Tribunal, however, awarded loss of dependency on minimum wages.

(ii) There were five dependents. Thus, deduction of personal and living expenses should have been 1/4th instead of 1/3rd taken by the Claims Tribunal.

(iii) The compensation awarded towards non-pecuniary damages is on the lower side.

LOSS OF DEPENDENCY:

4. The Appellants produced Vidya Wati (PW1) and Prem Kumar (PW5) to prove the deceased's income.

5. Smt. Vidya Wati testified that her father was earlier employed with Mod Attire Pvt. Ltd. She proved copy of the salary slip Ex.PW1/1. She testified that her father got employed with M/s. Prem Kumar & Co. He was getting a salary of `5,500/- at the time of his death in addition to overtime @ `2,000/- per month. In cross- examination, PW1 testified that she had no other documentary evidence with regard to her father's income. No suggestion was given to her that the deceased Shiv Prasad was not working under Mod Attire Pvt. Ltd. before joining M/s. Prem Kumar & Co. PW5 Prem Kumar deposed that the deceased was carrying out the work of hand embroidery in his company M/s. Prem Kumar & Co. He was being paid a salary of `5,500/- per month. In cross- examination, he stated that he did not have any documentary evidence to show that he was paying the deceased `5,500/- per month.

6. The deceased's salary certificate Ex.PW1/1 prior to his employment with M/s. Prem Kumar & Co. was not seriously challenged. Since with the earlier employer (Mod Attire Pvt. Ltd.), the deceased was paying contribution to ESI and Provident Fund, I see no reason to disbelieve the salary slip Ex.PW1/1. He would leave the earlier employer and join with the new one only for better prospects. Thus, I would accept PW5's testimony that he was paying a sum of `5,500/- per month.

7. The deceased was aged 48 years and was, therefore, entitled to an addition of 30% towards the inflation on the basis of the judgment of the Supreme Court in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, relied on and discussed by this Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011) decided on 16.07.2012.

8. It is established that there were five dependents. Thus, deduction towards personal and living expenses had to be 1/4 th instead of 1/3rd made by the Claims Tribunal. The loss of dependency thus comes to `8,36,550/-(`5,500/- + 30% x 12 x 3/4 x 13).

9. I would make a provision of `25,000/- towards loss of love and affection and `10,000/- each towards loss of consortium, loss to estate and funeral expenses.

10. The overall compensation thus comes to `8,91,550/-.

11. The compensation thus stands enhanced by `3,99,150/- which shall carry interest @ 7.5% from the date of the filing of the Petition till its payment. The compensation awarded shall be equally shared amongst the Appellants (the Claimants). 80% of the compensation shall be held in fixed deposit for a period of two years, four years,

six years and eight years. The rest shall be released on deposit.

12. The Respondent No.3 United India Insurance Company Ltd. is directed to deposit the enhanced compensation of `3,99,150/- along with interest in the name of the Appellants (the Claimants) with the Claims Tribunal within six weeks.

13. The Appeal is allowed in above terms.

14. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 10, 2012 pst